A brief history of International (Tribunal) Act

Part –II

When faced with the question of justice, we think about accountability and transparency. And no society can progress unless we can ensure the minimum of these two requirements to the people. While Bangladesh has made progress in many areas, we have a lot more miles to go to guarantee decent and good governance to the people, all our efforts notwithstanding. It is a continuing process. And together we shall overcome.
Someone said "the worse society, more law there will be; in hell there will be nothing but law and due process will be observed"- if it is too cynical, I shall quote Oliver Wendel Holmes, "life of law has not been logic--- it has been experience only."
About two thousand years ago a humble carpenter in Palestine was preaching a sermon of love and humility. It sent ripples across Imperial Rome. One thousand seven hundred and sixty four years on, an English historian visiting the Roman Forum, while the barefoot friars were singing vespers in the Temple of Jupiter, captured better than any, the sense of the time- the actuality of history: the various models of worship, which prevailed in the roman world, were all considered by the PEOPLE as equally TRUE; by the PHILOSOPHER as equally FALSE; and by the MAGISTRATE as equally USEFUL!
Gibbon's intellect did not fail him; his observation on human nature ever in search of the Being, the Creator as observed amidst the ruins of the Capitol, and the disengenuity of the Roman elite to rule the Empire bears resemblance to all age and clime. The prevailing cynicism of the time, particularly towards the end of the decade of 476, the Roman Emperors, in utter disdain to the citizens, would state, "powerful and mighty as the Romans were, with the whole Mediterranean world and beyond at their feet they momentarily forgot the transitoriness of human existence. They were forever, they thought".

Going back further, we remember the story of Cain and Abel, the story of jealousy, envy, greed, hatred, malice and avarice. We talk about the Vichy France, how the collaborators conspired against the partisans. Following' the Nazi defeat, the partisans took instant revenge against the collaborators; thousands were killed, some without trial, others framed in the makeshift courts. All the Vichy cabinet members including the Prime Minister were killed. Upon his return from exile in London, De Gaulle saved Marshall Petain the Vichy President by appealing to the French people that he was hero, that he had saved France in the First World War! He was sentenced to life imprisonment. He died there. In 1793 Robespierre said, "the execution of Louis XVI in January 1793 was a measure of public safety". What happened then? The country went in the hands of the weak and mediocre. It was no surprise that on November 1, 1799 a General, Napoleon Bonaparte, seized power.
We have plenty of laws -but it is the application and the use of those laws, which guarantee the rights of various groups and interests ensuring sustained and smooth growth of economy. I am thus in agreement with the 19th century Neapolitan Philosopher Gaetano Mosca, "Level of civilization corresponds to the grade of judicial Defense".

We have a fine Constitution .We must defend it. As South African Chief Justice Albee Sachs said 'Some Lawyers and Judges are lackey of vested interest ………others are freedom fighters". You, the Honorable Judges belong to the category of freedom fighters – I have no doubt about it.
Dreyfus Alfred (1859-1935) central figure in the' famous Dreyfus case, which divided France for almost four years. An officer of Jewish descent in the French artillery}', Captain Dreyfus was accused and convicted of having betrayed military secrets. In 1894 he was sent to Devil's Island to serve a sentence of life imprisonment. Evidence attesting to the innocence of Dreyfus and to the guilt of a Major Esterhazy was uncovered but suppressed by the military. Dreyfus was finally pardoned in 1906 by the Cour de Cassacione (Appellate Division). He became a symbol of injustice for liberal  intellectuals who vigorously opposed such right- wing reactionary forces as the military and the church. Emile Zola wrote the letter J’ACCUSE, and many other men of letters were ardent Dreyfus supporters. In A La Recherce de la Temp Perdu, Marcel Proust gives an excellent picture of the altgnll1ent of French opinion on the controversial case, which is also dealt with in Anatole France satirical series Histoire Contemporaine (1896-1901). On occasions in Bangladesh charges are framed by the state on political, ideological and even personal grounds, to defame the persons, which fall in the category of character assassination. Many have been victims of such defamation. Our assisting laws of tort are weak and are unclear about compensation. Therefore, when most of the victims are completely exonerated from such framed' charges, they have no recourse to recover their losses in terms of money, time and  honour. In most Anglo Saxon countries, the laws are clear and unambiguous: the person or state is held liable to pay compensation in the full glare of public knowledge.
The growth and development of law, rule of law arid jurisprudence is fascinating. It is closely linked with the growth of human civilization. It has developed through ages and it is still evolving. When Aristotle thought that law was to protect the rich. Plato thought otherwise: the rich do not need law to protect them, it is the poor who need protection. Evaluation of law and jurisprudence is as interesting as the very, growth of homo sapiens themselves. Think of the battle of Thermopylae: only 300 Spartans and 700 Thespians put up a heroic defence of the narrow pass of 300 ft against 50000 Persians; they sacrificed their lives to safeguard the motherland (480 BC). Ballads were written to immortalize their  sacrifice, love and heroism in a battle to save honour to save the identity of their country. Andre  Malraux compared the: epic battle of Thermopylae with the heroic battles of the Bengalee freedom fighters, the spirit of the liberation fighters. They fought to protect their honour, their dignity, to resist the military-bureaucratic comprador gameplan to murder innocent Bengalees in the name of 'Religion', to impose communalism on the non-communal Bengalees. In this war, the worst forms of genocide and crimes against humanity were committed. This was a war in violation of all laws of war under the Geneva'. 
The International Crimes (Tribunal) Act was drafted at BILIA under the guidance of then law and foreign minister Dr. Kamal Hossain. Two prosecutors of Nuremberg Trial, Professor Jeschek and Professor Otto Von Trifterrer were consulted at the Max Plank Institute of International Criminal Law, Baden Baden, West Germany and Professor Ian Mcdormatt, Head of the International Commission On Jurists (ICJ), Geneva assisted us. But alas we could not try even a single alleged Pakistan war criminal for reasons beyond our control. It is also here that the very idea of International Criminal Court (ICC) was mooted in December 1974. The Constitution of Bangladesh is the direct outcome of the war of liberation, one of the finest in the world: it was truly a reflection, as a South African jurist said, of the hopes and aspirations of the people of Bangladesh.

When I look back to the 13 months training programmes of the Judges and  Lawyers of Bangladesh, which we started with a sense of temerity, I very often struggled myself with some thoughts left with us by that great 19th century French Philosopher-Priest Tailhard de Chardin when he suggested that noology, 'the collective memory and intelligence of human race is our plimsoll line- our survival kit'. He appears increasingly relevant to me in our efforts in establishing rule of law. With all the problems buffeting us today, one is likely to give up in despair, but ultimately the people's will shall prevail, prevail for the summum bonum of the people of Bangladesh.
A brief look at the history underlines the same principle 'summum bonum' for that people. In Plato's Republic [about 400 BC], the dialogues in Protagorus and Gorgias is devoted to the ethical and political themes. Socrates' ruling principle is that the business of life is to tend the soul and his conviction that goodness of soul means knowledge of good and evil. The paradoxes of righteous and unrighteous soul are also dealt with - 'to suffer a wrong is an evil but to inflict one is much worse'.
Sanskrit -ManuSmriti [Tradition of Manu] deals with Hindu Code [Dharmashastra] in India [about 100 BC]. It deals with the laws of kings, and matters of judicial interest. The doctrine deals with Karman, the soul, and the hell. This does not make any particular distinction between religious laws and practices and secular laws. Its influence has been monumental in the development of the Indian laws and practices over the centuries: the question of right and wrong is easily understood by even a simple folk in our community.
Earlier Chandragupta II called Vikramaditya [C 380-C415] is eulogized in the Sanskrit inscription on the iron pillar in the Quwat -ul-Islam mosque in Delhi. A devout Hindu king, he tolerated all the religions - Buddhism, Islam and Jainism and the influence on the subsequent generations was immense. The king exercised his rule through the laws of Kama, Dan, Dandh and Vedh. They all together exerted major influence on all scholastic philosophers, East and West, North and South, in the gradual development of laws of philosophy and jurisprudence throughout history.

After the Muslim conquest of Egypt and Syria, Aristotelian tradition may be seen in four great Muslim Philosophers, the Arab Al-Kindi [C 800-C 870], the Turk al- Farabi [C 878 - C 950], Persian Avicenna [Ibn Sina 980-1037] and in Muslim Spain Averros [lbn Rusd, 1126 -1198].

Further down the road as civilization started taking better shape, law and justice continued to grow and develop along with human being. We remember the contribution of the king of Israel Solomon, the wisest and the most magnificent of the kings, son of David (Dawood p.b.u.h.), as in the Old Testament, when two women came before the king bearing a live and a dead baby, and each claimed the live baby. Solomon ordered the live child to be cut in half and shared between the two. One woman begged the king to give the child to the other woman rather than kill him; Solomon at once knew that who was the true mother - the wisdom of God was in him to render justice.

The Constitution being mangled with 14 amendments may lead one to easily get frustrated. But the French Philosopher did not think that way. It is a part of our own growth, our evolution. What he meant was perhaps like this: no individual or caucus can be held responsible- we are collectively responsible. But there are nuances, shades of differences; in the aftermath of the events of August 15, 1975, the nation's epic battle against the forces of evil suffered shocks, shocks of trauma from which it has not yet recovered. The nation state was reduced to the status of a Babbitt, the travesty of application of law shamed us all. The identity of the Bengalee persona was lost. In Shakespeare's words, the perfumes of Arabia will not sweeten this little hand'- [Hands that committed the heinous crimes on August 15, and November 3, 1975]; our syncreatic   values were thrown overboard. But still we survive. We have a democracy, albeit fragile and weak. Yet we are here, the country exists. Democracy is like a Grecian Urn - -it is beautiful but difficult to handle; it is the worst form of the government but as George Washington in a letter to Lafayette on July 25, 1785, said 'democratic states must feel before can see; it is this that makes their governments slow, but the people will be right at last'. As the Grecian Urn needs to be nurtured with care and unction, so we need to nurture democracy, particularly the parliamentary democracy in a country like ours whose institutions have yet to take roots unlike India. We all agree that it is the only system of government for us but we do not know how to safeguard it. We all agree that we have to protect it - but not on the modality. But we shall find a way - we shall overcome.
Bengal was really never independent; but the people rallied behind one leader to defeat the hordes of alien forces; but what happened in the post-1975 period? We are perhaps too near history to give any verdict - but the jury is out there. What would have happened if George Washington was murdered within 4 years of 1776? Between 1776 and 1791, he consolidated the democratic roots - the Constitution was given in 1787. Election of John Adams as President was very carefully choreographed. Or think of the suspension of the right of Habeas Corpus by Abraham Lincoln during the American civil war. Chief Justice Taney declared war against Abraham Lincoln, but the' President stood firm: he. is reported to have said, Mr. Chief Justice you can prove me guilty but posterity will judge me otherwise. Today we know if Abraham Lincoln did not act, there would have two United States of America-North and South.  

Lord Denning towards the end of his active life quoted St. Paul:
Whatsoever  things are true,
Whatsoever  things  are honest,
Whatsoever things are just,
Whatsoever things are pure,
Whatsoever things are of good report,
If there be any virtue,
And if these be any praise
Think on these things.
Conviction with patriotism, courage with vision, religion with compassionate mind set, understanding democratic rights  with accountability will help us restore the spirit of the liberation war. From Lycargus to Hummurabi, from Xerexes to the Roman Caesars, every ruler wanted to give security to their citizens -security as understood by them and accepted at the time. As Tristan and Isolde, Faust or Don QuLxote are inescapably linked to the idea of Europe, Rama}'an and Mahabharata, Lord Buddha, Prophet Muhammad (Peace be upon him), the Bible, Chandabali, Shakuntala, Gitanjali, works of Confucius- all shaped what is today South Asia and Asia. When Ibn Khaldun (1332-1406), whose work has been compared to that of Thucidydes and Machiavelli in its scope and sweep of history in his Prolegomena and Universal History, was prescient when he insisted "societies are not static, but constantly", evolves under the 'Laws of change and decay". Khaldun suggests that societies are governed by general laws and not much affected by individuals. But Khaldun was perhaps conscious about Lucretius (Titus Lucretius Carus, 98-55 BC) who said all things, including men, operate according to their own laws and not, influenced by supernatural powers'.
Law does not deal merely with abstract ideals, but with the enforcement 0 ideals. It does not deal merely with human rights, but with legally enforceable Noting the distinction between rights as ideals and rights to be realized, the Roman Jurist Ulpian asserted that law is the 'true philosophy'. Since law is b reason and serves the ideal of justice for all, it is the Lawyers and Judges who the calling of the true philosopher. The study of law, therefore, is the highest £ philosophy because it is the law that gives to notions of right and wrong a concrete and practical form.
Thus rule of law and the science of jurisprudence developed over the year John's Magna Carta (1215) was not a gift: citizens had to fight for their rights; Stephen Langton facilitated in limiting the king's power by law. Oliver Cromwell's (1599-1658) case is a precedent in the development of law. Execution of Charles I was not forgotten. After his death, the Parliament adjudged him guilty of regicide and pronounced that he should be hanged. His body was exhumed and the Caracas was hanged in front of the Parliament and reburied. The wheel of justice moves slowly but inexorably.
Bangladesh has acceded to a number of Human Rights Conventions including the 8 acceded to on December 10, 1998. But citizens are not always being protected, the Constitution and Conventions notwithstanding. But can we blame any individual or group of people? Ibn Khaldun also talked about the collective responsibility formula. Jurisprudence and law goes through a process of evolution. The British Common Law, we follow, is an example.
Rights of Men:
Bangladesh Constitution distinguishes itself by incorporating, perhaps, the most comprehensive fundamental rights, put in black and white, and mandatory for every government that rules the country [Articles 26-47].
Our fundamental rights chapter was inspired by a wide range of Authors and Philosophers, from Magna Carta to Montesquie, from Thomas Paine to Edmund Burke, from the Federalists papers to UDHR, 1948, along with the UN Charter. In Paine's words, "There never did, there never will, and these never can, exist a parliament, or any description of men, or any generation of men in any country, possessed of the right or the power of bending and controlling posterity to the 'end of time', or of commanding forever how the world '(country)' shall be governed or who shall govern it; and therefore all such clauses, acts or declarations by the makers of them attempt to do what they have neither the right nor the power to exclude, are in themselves null and void". In his Reflections on the Revolution in France, Edmund Burke "insisted that the constitution of every state was a natural, organic growth and that individual rights were meaningful only if they vested upon legal and traditional foundations and government is a countenance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this".
Whenever minimal democratic norms are violated, it has a self-perpetuating trend to get from bad to worse. In the 1930's and 40's there was an interesting phase called 'defenestrating'-being thrown out of the window to death. This happened mostly to the dissenters of a monolithic culture. We need Arthur Koestler (Darkness of noon), Orwells'1984, The God that failed, the Captive Mind of Czelaw Milosz or Hannah Arendt's origins of totalitarianism. Like Whitaker Chamber 'Witness' and his letter to his children, we are all witness today, 2005: "the witness may be gone, the testimony will stand".

What is the ICC?

The International Criminal Court (ICC) is a permanent international tribunal that will try individuals responsible for the most serious international crimes. One hundred and sixty countries attended a UN sponsored conference in Rome in 1998 to draft a treaty for the Establishment of the ICC after five weeks intense negotitiations, 120 countries voted to adopt the treaty. Only seven country voted against it (including China, Libya, Iraq and the United States) and 21 abstained. Before the court can be set up, 60 countries needed to ratify the treaty. 139 states signed the treaty by the 31 December 2000 deadline. The treaty entered into force on July 1, 2002. As of July 18, 2008, 108 states have ratified it. Bangladesh is yet to ratify the treaty. It may be mentioned that the idea of ICC was first mooted in an International Conference held under the auspices of BILIA in December 26-29, 1974. The Rome Treaty is only a culmination of the process initiated by BILIA under the directives of Bangabandhu Sheikh Mujibur Rahman.

How politically motivated cases be avoided?
Many safeguards exist in the ICC treaty to prevent frivolous or politically motivated cases. For example, all indictments will require confirmation by a pre-trial chamber of judges, which will examine the evidence supporting the indictment before issuing it. The accused and any concerned countries will have an opportunity to challenge the indictment during confirmation hearings before the pre-trial chamber. In addition, any investigation initiated by the prosecutor will first have to be approved by the pre-trial chamber.

Prosecutors and judges all undergo rigorous scrutiny before they are elected and appointed to the court. The treaty establishes strict criteria for the selection of the prosecutor and the judges.

What happens if a country does not ratify the treaty?
Country that fail to ratify the ICC treaty will be prohibited from participating in the nomination of the court’s judges and prosecutor. They will also lose the privilege of decision about the budget and administrative operations.

Opening statement of Justice Robert H. Jackson

Chief of Counsel for the United States
 Nuremberg, Germany, November 21, 1945.
“May it please Your honors: The Privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrong which we seek to condemn and punish have been so calculated, so malignant, and devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated, that four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”
2. Our attention has been drawn to an article in The Courier magazine of 3rd April, written by Barrister Harunur Rashid where he has suggested that does the 1973 Act may need a review; in this connection he has referred to Articles 9, 14,15 and Section II .

Does the 1973 Act need review?

The act was enacted in 1973. Meanwhile Bangladesh has become party to many international human rights conventions/treaties. Some legal experts argue that taking into account the provisions of the Covenant on Civil and Political Rights, in particular Articles 9 (arrest and speedy trial), and Articles 14 and 15 (the right of the accused) and (Section 21) (right of appeal), may be revisited so as to ensure that they conform with Provisions of international human rights conventions/treaties. In our view 1973 Law does fully conform with the process of international human rights conventions treaties.

Another article found in a blog by Dr. Ahmed Ziauddin suggested that the report identifying the major war criminals was never made public nor the names of the 195 principal planners and executioners of Bangladesh genocide. Unfortunately the writer failed to do a comprehensive research on the subject. The names are documented in Vol. 3 of Bangladesh Document by eminent scholar ASM Shamsul Arefin (P. 229-233).